United States v. South Buffalo R. Co.

• Decision Date: 30 June 1948
• Docket Number: No. 166,Docket No. 20860.,166
• Parties: UNITED STATES v. SOUTH BUFFALO R. CO.
• Court: U.S. Court of Appeals — Second Circuit

168 F.2d 948 (1948)

UNITED STATES v. SOUTH BUFFALO R. CO.

No. 166, Docket No. 20860.

Circuit Court of Appeals, Second Circuit.

June 30, 1948.

T. Vincent Quinn, Asst. Atty. Gen., George L. Grobe, U. S. Atty., of Buffalo, N. Y., Leo Meltzer, Atty., Department of Justice, of Washington, D. C. (Henry J. Vinskey, Attorney, Interstate Commerce Commission, of Washington, D. C., of counsel), for the United States.

Cravath, Swaine & Moore, of New York City (Hoyt A. Moore, Bruce Bromley and Frank M. McGarry, all of New York City, of counsel), for South Buffalo Ry. Co.

Before SWAN, AUGUSTUS N. HAND and CLARK, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

This is an action brought by the United States against South Buffalo Railway Company to collect a penalty for violating the Safety Appliance Act, 45 U.S.C.A. §§ 1-16 inclusive. The third and sixth claims asserted against the defendant, which are alone in question on this appeal, involve the Safety Appliance Act, §§ 1 to 10, and an order of the Interstate Commerce Commission dated June 6, 1910, which prescribe that a minimum percentage of power air brakes shall be used in a train. Section 9 of Title 45 of the Code requires that not less than 50 per cent of the cars in a train shall have their brakes used and operated by the engineer of the locomotive drawing such train and the order of June 6, 1910, increased that percentage to 85 per cent.

The third cause of action relates to the movement of 15 cars, moving from Buffalo, New York, to Lackawanna, New York, only 10 of which had their brakes used and operated by the engineer of the locomotive.

The sixth cause of action relates to a movement by the same locomotive. The movement there was of 15 cars in the reverse direction from Lackawanna to Buffalo, none of which had their brakes hooked up.

It is undisputed that the statute does not apply to a switching movement. The plaintiff argues that it covers the facts of the case at bar for the reason that the proof and findings of the court below show that the movements in question were train movements and not switching movements.

The defendant is situated and operates entirely within a strip of land less than 6 miles in length and 3 miles in width. It owns and operates approximately 87 miles of track. Its entire system of trackage is operated as a single yard. All of its crews are yard crews and they are paid at yard rates applicable to yard switching services. Through trains do not pass over its tracks. It does not have any block signal system and all of its movements are made at slow speeds with a member of the crew stationed at the forward end of the locomotive so that he can see sufficiently far ahead to enable the movement to be brought to a stop within one-half of the range of his vision. All of its operating income and expenses is at the express direction of the Interstate Commerce Commission, classified as switching income and expenses. Findings 14, 15, 16 and 17 describe the movements upon which our discussion whether they are train or switching movements must depend and are set forth in the margin.¹

It appears from the foregoing findings and the opinion of the court that the movements were both ones where 15 cars, which had been gathered together by various switching movements, were transported as a unit at an average speed of five miles per hour for a distance of approximately two miles to points where they were then broken up and switched to various tracks for further shipment or for unloading. In both instances the 15 cars passed no crossings except a private one of the Bethlehem Steel Company. This crossing was protected by a guard and was used by employees and business visitors of that company but there was uncontradicted evidence that a considerable number of people crossed the tracks there, particularly at the beginning of the morning and at the end of the day when the plant closed. There is further evidence by an inspector of safety appliances for the Interstate Commerce Commission, who had had thirty-two years railroad experience, that there was grave danger in moving these cuts of cars over the grades involved in the movements without having the air brakes hooked up. The district judge determined that upon the facts before him there was no necessity for the application of the safety requirements of the Act. This conclusion was apparently because he conceived of all of the car movements within the tract owned by the defendant as in effect switching movements involving no sufficient hazard to justify the requirement of air brakes.

This is a close case and the opinion and findings of Judge Knight who conducted the trial show a careful scrutiny, but after much deliberation and not without some doubt we feel obliged to differ with his conclusion that the defendant was not subject to the Safety Appliance Act in respect to the movements of the cars involved in the third and sixth causes of action. We agree with the judge in holding that the classification by the Commission of the defendant's operations as "switching" for accounting purposes should have little, if any, weight in determining whether the movements in question were "train movements" and indeed such a classification would seem to be counterbalanced by the Commission's request to the Attorney General to institute this action to enforce the penalties of the Act in respect to the transactions embraced in the third and sixth claims.

The requirements of the Act and the Commission's order apply to any "train," a term which has been interpreted to mean a train movement as contrasted with a switching movement. Apparently the reason why the Act has not been applied to situations characterized as switching is that they do not ordinarily fall with in the meaning of the word "train" and involve a frequent coupling and uncoupling of cars within very limited areas which has been thought to render the use of air brakes impracticable and unnecessary to achieve the purposes of the Act. See opinion of Hutcheson, J., in United States v. Texas & N. O. R. Co., D.C.S.D.Tex., 13 F.2d 429, 430.

In the present case 15 cars which had been assembled at one point were moved as a unit for about two miles to another point where they were to be broken up for further disposition, without any cars being added or cut off over the route. We believe that this is a transfer of cars from one switching point to another and itself is a train movement within the normal meaning of the provisions of the Act rather than a switching operation. In a decision in United States v. Northern Pac. Ry. Co., 254 U.S. 251, 41 S.Ct. 101, 102, 65 L.Ed. 249, which held the Act applicable to a terminal railroad four miles in length which was not a main line, Mr. Justice Brandeis speaking for a unanimous court said: "A moving locomotive with cars attached is without the provision of the act only when it is not a train; as where the operation is that of switching, classifying and assembling cars within railroad yards...